Delta Air Lines, Inc. v. Rukon Group
Claim Number: FA1505001618777
Complainant is Delta Air Lines, Inc. (“Complainant”), represented by Jeffrey R. Baxter of McKenna Long & Aldridge, Georgia, USA. Respondent is Rukon Group (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <deltaairlines.flights>, registered with Crazy Domains FZ-LLC Dreamscape.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2015; the Forum received payment on May 11, 2015.
On May 13, 2015, Crazy Domains FZ-LLC Dreamscape confirmed by e-mail to the Forum that the <deltaairlines.flights> domain name is registered with Crazy Domains FZ-LLC Dreamscape and that Respondent is the current registrant of the name. Crazy Domains FZ-LLC Dreamscape has verified that Respondent is bound by the Crazy Domains FZ-LLC Dreamscape registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 14, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 3, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@deltaairlines.flights. Also on May 14, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 10, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant has established rights in the DELTA and DELTA AIR LINES marks through registration with multiple trademark agencies including the United States Patent and Trademark office (“USPTO”) (Reg. No. 654,915, registered November 19, 1957), (Reg. No. 970,418 registered October 9, 1973), respectively.
Respondent’s disputed domain name is confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks. Respondent’s disputed <deltaairlines.flights> domain name includes Complainant’s mark in their entirety plus the generic top-level domain name “flights.” The addition of a gTLD is not sufficient to bar a finding of confusing similarity or identity.
Respondent is not commonly known by the disputed domain name. WHOIS information shows that the registrant is listed as “Rukon Group” which does not resemble the disputed domain name. There is no other information available to indicate that Respondent is commonly known by the disputed domain name.
Respondent has not yet used the disputed domain name for any purpose but will presumably use the domain name to host advertisements that divert internet users for Respondent’s commercial gain.
Respondent’s use of the entire DELTA AIR LINES mark suggests an opportunistic attempt to improperly appropriate and capitalize on the goodwill associated with Complainant’s marks.
When asked to transfer the domain name to Complainant, Respondent required Complainant to agree to purchase the domain name and threated it would put up content on a website addressed by the domain name.
Respondent had actual or constructive knowledge of Complainant’s rights in the DELTA and DELTA AIR LINES marks when registering the disputed domain name. This knowledge is evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in the proceeding.
Complainant has rights in the DELTA AIR LINES mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent holds the at-issue domain name inactively.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of USPTO trademark registrations for the DELTA AIR LINES trademark demonstrates its rights in such mark for the purposes of Policy ¶4(a)(i). Complainant’s rights exist notwithstanding that Respondent may operate outside the jurisdiction of the trademark’s registrar. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also, Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent forms the at-issue domain name by appending a period, the suggestive term “flights,” and the top-level domain name “.com” to Complainant’s trademark less its spaces. The resulting differences between the domain name and Complainant’s DELTA AIR LINES trademark do not differentiate the two for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel finds that the <deltaairlines.flights> domain name is confusingly similar to Complainant’s DELTA AIR LINES mark. See DD IP Holder LLC v. Manpreet Badhwar, FA 1562029 (Nat. Arb. Forum July 14, 2014) (“the combination of the “dunkin” element with the ”.menu” gTLD extension adds further to the confusing character of the domain in issue in the present case.”); see also, Google Inc. v. N/A/ k gautam, FA 1524232 (Nat. Arb. Forum Nov. 18, 2013) (finding that the disputed domain name is confusingly similar to the at-issue mark despite the misspelling of the mark by omitting letters, the addition of a generic term, and the addition of a generic top-level domain); see also, Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”);
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name lists “Rukon Group” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <deltaairlines.flights> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent fails to make an active use of the at-issue domain name. The lack of use of the trademark bearing <deltaairlines.flights> domain name precludes a finding supporting Respondent‘s rights or interests in the domain name pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii). See Vivendi Universal v. Sallen, D2001-1121 (WIPO Nov. 7, 2001) (finding no rights or legitimate interests from the respondent's alleged "free speech" use of the domain name <vivendiuniversalsucks.com>, which fully incorporated the complainant's VIVENDI UNIVERSAL mark, because the domain name was inactively held).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent’s incorporation of Complainant’s entire DELTA AIR LINES mark in the at-issue domain name, absent any hint of a plausible good faith use for the domain name and given the fact that Respondent admits by its silence to Complainant’s allegations of its bad faith intentions, unveils Respondent’s opportunistic desire to improperly capitalize on the goodwill associated with Complainant’s trademark. These circumstances demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv) and otherwise. See State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the respondent registered the domain name <statefarmnews.com> in bad faith because the respondent intended to use the complainant’s marks to attract the public to the web site without permission from the complainant); see also, Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name ‘singaporeairlines.com’ is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith”).
Respondent registered the <deltaairlines.flights> domain name knowing that Complainant had trademark rights in the DELTA AIR LINES mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s incorporation of the entire trademark into the at-issue domain name. It is thus clear that Respondent intentionally registered the at-issue domain name precisely to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's DELTA AIR LINES trademark further indicates that Respondent registered and used the <deltaairlines.flights> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <deltaairlines.flights> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 10, 2015
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